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Appellate Courts Have Discretion to Set Scope of New Trial on Remand—At Least Sometimes

Rule 59 is a powerful tool. A trial court has discretion to determine whether any one of the nine grounds in Rule 59(a) applies. The trial court then has discretion to select a remedy—a new trial in whole or in part. The trial court may not, however, grant a Rule 59(a) motion and then award something other than a new trial, like an increase in the amount of damages. That …Read More

Court of Appeals: Magic Words Still Have Their Place in Med-Mal Actions

The Court of Appeals again reminded medical-malpractice litigants this week of the importance of including certain magic words about expert review in the complaint. In Fairfield v. WakeMed et al., the Court reconfirmed strict compliance with the heightened pleading standard in medical malpractice cases and affirmed the trial court’s dismissal of an action for straying too far from the language required by Rule 9(j). Wait, didn’t we just write about …Read More

The Labored Process of Determining Venue

Can a motion to change venue for convenience of the witnesses be filed along with an answer? The Court of Appeals said “yes” on Tuesday in a decision that helps practitioners navigate some confusing issues regarding questions of improper and inconvenient venue. In a split decision in Stokes v. Stokes, the majority dismissed a plaintiff’s appeal from an order changing venue, while the dissent suggested that the court should have …Read More

If at First Your Appeal Doesn’t Succeed, You May be Able to Try Again

Worry not – if the Court of Appeals dismisses your interlocutory appeal, you can likely try again later. In WLAE, LLC v. Edwards, the Court made it clear that its order dismissing an appeal of the trial court’s order dismissing claims against one defendant did not prejudice the plaintiff from appealing that order once the final judgment was entered. The plaintiff in WLAE brought claims against two defendants for alleged …Read More

Preserving Sentencing Errors Just Got More Confusing

In State v. Meadows, the Court of Appeals determined that sentencing errors not preserved with a timely request, objections, or motion are waived under Appellate Rule 10(a)(1).  In doing so, the Meadows court 1) declined to follow a prior line of cases holding that Appellate Rule 10(a)(1) was inapplicable to sentencing issues, 2) applied the recently created exception to the In re Civil Penalty rule [previously blogged on here], and …Read More

Court of Appeals: A Guaranty is a Separate Contract No Matter What the Contracts Say

sheIn a divided opinion Tuesday, the Court of Appeals held that a lease and guaranty are separate contracts, even when the guaranty is incorporated into the lease. See Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc.  For this reason, the court held, a guaranty might be discharged in bankruptcy – even where the tenant assumes the lease to which it is attached and incorporated. The lease at …Read More

Independent Auditors Do Not Owe Clients Fiduciary Duties After All

In an opinion that must have come as a relief to North Carolina accounting firms and the Chamber alike, the North Carolina Supreme Court held that, absent unusual circumstances, an auditor is not a fiduciary to its client. In Commscope Credit Union v. Butler & Burke, the Court reversed a Court of Appeals’ holding that the relationship between a client and its auditor is one that may give rise to …Read More

Buyer Beware: Winning the Race to the Courthouse Isn’t Always Enough when the IRS is Involved

Harkening back to your first year property class, you may recall that North Carolina is a “pure race” state – that is, the first person to record a deed wins even if he has notice of other unrecorded conveyances of land.  However, the Court of Appeals held Tuesday that this rule doesn’t always apply – particularly where federal law provides differently.  In Henkel v. Triangle Homes, Inc., the Court held …Read More

Business Court Designation Papers Are Now a Mandatory Part of the Record on Appeal

In yet another case highlighting potential pitfalls when appealing a decision of the Business Court, the North Carolina Court of Appeals dismissed a plaintiff’s appeal Tuesday for failing to provide specific information relating to the Court’s jurisdiction over the appeal.  In Grasinger v. Williams, the Court of Appeals held that the plaintiff-appellant “failed to confer jurisdiction” on the Court because the Record on Appeal did not contain anything that established …Read More

Court Enforces Exception to the American Rule on Attorneys’ Fees

It’s a rule familiar to all litigants – one that probably discourages some plaintiffs from pursuing well-founded cases where judgment is likely to be expensive and that frustrates many a defendant dragged into court with little or no basis: the so-called “American Rule” that each party to litigation pays its own attorneys’ fees.  (In contrast, the “English Rule” followed in most other countries requires the loser to pay the prevailing …Read More